McCall v Fairfield City Council - [2021] NSWPIC 242

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McCall v Fairfield City Council [2021] NSWPIC 242
APPLICANT:	Gregory George McCall
RESPONDENT:	Fairfield City Council
MEMBER:	Michael Wright
DATE OF DECISION:	14 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Section 16 of the 1987 Act; deemed date of injury; Stone v Stannard Brothers Launch Services Pty Ltd and Alto Ford Pty Limited v Antaw considered; caution when considering medical records; Mason v Demasi considered; Jones v Dunkel and Manly Council v Byrne inferences considered; Hancock v East Coast Timber Products Pty Ltd and Paric v John Holland (Constructions) Pty Ltd consideration of fair climate for expert opinion; competing causative factors and main contributing factor to aggravation of a disease; AV v AW considered; Held- further employment as a garbage truck operator resulted in aggravation of disease of lumbar spondylosis, and that further employment was the main contributing factor; award for applicant for closed period weekly compensation.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant sustained injury within the meaning of section 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), such injury being deemed to have happened on 24 September 2019, being an aggravation in the course of the applicant’s employment in the period from 12 March 2018 to 24 September 2019 of the underlying condition of lumbar spondylosis. 2. The applicant had no current capacity for work for the period 24 September 2019 to 20 December 2019 as a result of the aggravation of his pre-existing lumbar spondylosis deemed to have happened on 24 September 2019 as a result of his employment from 12 March 2018 to 24 September 2019. The Commission determines: 1. Respondent to pay the applicant pursuant to section 36(1) of the 1987 Act weekly compensation: a. for the period 24 September 2019 to 30 September 2019 at the rate of $2,177.40 per week, and b. for the period 1 October 2019 to 20 December 2019 at the rate of $2,195.70 per week. 2. Respondent to pay the applicant’s reasonably necessary medical, hospital and related treatment expenses pursuant to section 60 of the 1987 Act as a result of the applicant’s injury, being aggravation of a pre-existing condition of lumbar spondylosis, with a deemed date of injury of 24 September 2019. 3. The Commission notes that the respondent has paid leave entitlements to the applicant in the above periods and credit is to be given to the respondent for payments made.

STATEMENT OF REASONS

BACKGROUND

In an Application to Resolve a Dispute (ARD), Mr Gregory George McCall (the applicant) claimed weekly compensation and related medical and treatment expenses for a disease injury of his back, with a deemed date of injury of 24 September 2019, as a result of the nature and conditions of his employment with Fairfield City Council (the respondent).
In a section 78 notice dated 16 January 2020 the respondent as a licensed self insurer disputed liability for the applicant’s claim on the basis that the applicant had not complied with the legislative requirements for notification of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 242
Decision Date: 14 July 2021

CaseChat Overview and Summary

In the case of McCall v Fairfield City Council, the applicant, McCall, sought compensation for an aggravation of lumbar spondylosis, which he claimed was caused by his employment as a garbage truck operator with the respondent, Fairfield City Council. The matter was heard in the Dust Diseases Tribunal of New South Wales. The central issue before the Tribunal was whether McCall's employment with the Council had contributed to the aggravation of his pre-existing condition of lumbar spondylosis and whether this aggravation was covered under the provisions of the Workers Compensation Act 1987.

The Tribunal examined the evidence presented, including medical records and expert opinions, to determine the extent to which McCall's employment may have caused or exacerbated his condition. The Tribunal considered the relevant statutory provisions, particularly section 16 of the 1987 Act, which addresses the deemed date of injury in cases of aggravation of a disease. The Tribunal also evaluated the competing causative factors and sought to identify the main contributing factor to the aggravation of McCall's condition. The Tribunal applied principles from precedent cases such as Stone v Stannard Brothers Launch Services Pty Ltd, Alto Ford Pty Limited v Antaw, Mason v Demasi, Jones v Dunkel, Manly Council v Byrne, Hancock v East Coast Timber Products Pty Ltd, and Paric v John Holland (Constructions) Pty Ltd in their analysis.

After thorough consideration of the evidence and applicable law, the Tribunal concluded that McCall's employment as a garbage truck operator had indeed resulted in an aggravation of his lumbar spondylosis, and that this employment was the main contributing factor to the aggravation of his condition. The Tribunal found that the aggravation occurred within the closed period, thus qualifying for compensation under the Workers Compensation Act 1987. Consequently, the Tribunal awarded McCall weekly compensation for the period of aggravation, recognising the impact of his employment on his health. The Tribunal's decision was grounded in a careful evaluation of the medical evidence and an application of the relevant statutory framework.

Orders